How Not to Respond to an Employee’s Inappropriate Comment


The dismissal of an employee who has made an inappropriate remark to a customer might in some cases be justified. However, as an Employment Tribunal (ET) ruling made plain, there can be no excuse for jumping to a conclusion after failing to conduct a fair investigatory and disciplinary process.

The case concerned a mobile vehicle technician who, when he arrived at a client’s premises, was informed that he was not expected. In response, he told the client that he was not surprised because ‘we have a female Eastern European woman in the office and she’s always making mistakes’. He was dismissed by his employer after that comment drew a complaint from the client.

In upholding his unfair dismissal claim, the ET noted that a letter by which he was invited to a disciplinary meeting did not accuse him of discrimination or hostility. Rather he was charged with having spoken of a colleague in a derogatory manner, using language that could be deemed as discriminatory.

The ET found that the reason for his dismissal was that his employer believed that he was hostile and discriminatory towards Eastern European women. There was no reasonable basis for that belief and such an allegation was never put to him. He thus had no opportunity to respond. At no point in the investigatory process was he asked whether he held discriminatory views or whether he was hostile to Eastern European colleagues.

He had recently received a positive work appraisal, commending his good attitude, and there had been no previous complaints about his behaviour from colleagues or customers. That indicated that he was not in fact hostile or discriminatory and there was no evidence that he was. It was therefore unlikely that a full and thorough investigation would have revealed evidence that would have allowed a fair dismissal to take place.

The ET acknowledged that his behaviour was inappropriate and that he should not have complained to the client about mistakes being made by the employer’s organisation. He had, however, apologised and it was a case of minor misconduct on his part. On that basis, his compensation – which would be assessed at a further hearing if not agreed – would be reduced by 15 per cent.

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